#### Arthur J. Montgomery, *Contestant v.*T. E. N. Steele, *Contestee*

(No. 9643)

Submitted October 10, 1944.

Decided October 31, 1944.

*173
      *Joseph R.*Curl, for plaintiff in error.

*Walter A. McGlumphy*and *Martin Brown,*for defendant in error.

Fox, Judge:

Under existing statutes which permit the election of two members of a county board of education from a magisterial district of any county, and which limit such election to that number, Washington Magisterial District, in Marshall County, at this time, has two members of the Board of Education of that county, to-wit: Ralph Riggs, whose term of office does not expire until after the beginning of the term of those to be elected at the general election to be held in November, 1944; and Arthur J. Montgomery, appointed to fill an unexpired term, occasioned by the resignation of one Guy Alexander, and which unexpired term it is necessary to fill in the coming November election.

Arthur J. Montgomery and T. É. N. Steele were the sole candidates, for the nomination for said unexpired term, in the non-partisan primary held in May, 1944, and both *174are residents of Washington District. In said primary Montgomery received 3,680 votes, and Steele 2,904 votes, as determined by a convass of the votes cast in said primary. Montgomery, having received a majority of the votes cast in the primary, and being of the opinion that, under the provisions of Section 5, Article 4 of Chapter 48 of the Acts of the Legislature, 1943, he was the sole nominee, and solely entitled to have his name placed on the non-partisan ballot for said office in the November election, and assuming to act under Article 9 of Chapter 3 of the Code, filed his notice of contest and served the same on Steele that he would contest his designation as a nominee on the non-partisan ballot for the election of members of the Board of Education of Marshall County, in the ensuing general election. This notice was dated May 23, 1944, served on Steele the following day, and filed before the County Count of Marshall County on July 5, 1944. The matter was set for hearing on July 25, 1944, on which date , Steele appeared and interposed his demurrer to the notice of contest, which demurrer the court overruled; after which, On the same day, evidence was taken and the matter submitted for final decision. Whereupon, the county court entered its order, dated July 25, 1944, reciting the facts hereinbefore noted, as to which there is no dispute, and in which order the court made the following holding and declaration:

> “* * * that under the provisions of Chapter 48, Article 4, Section 5 of the Acts of the 1943 Regular Session of the Legislature of West Virginia, one nomination may be made for the same magisterial district wherein only one member of said Board of Education of Marshall County already elected and otherwise qualified resides and will continue to hold office as specified in said Act until the 1st day of July, 1947; and that as the said Ralph Riggs, a resident of said magisterial District of Washington, is now, and will be, a member of said Board of Education of Marshall County until the 1st day of July, 1947, and that only one such nomination may be made for said magisterial district wherein one such member already elected and otherwise qualified resides and *175will continue to hold his said office as aforesaid, the Court therefore declares that the said Arthur J. Montgomery, who is a resident of Washington District, Marshall County, West Virginia, received a total of three thousand six hundred and eighty (3,680) votes at the primary election held • on the 9th day of May, 1944, and that the said T. E. N. Steele, a resident of said Washington District, Marshall County, West Virginia, received a total of two thousand nine hundred and four (2,904) votes.

> This Court therefore declares that the said Arthur J. Montgomery is the sole and only nominee for the said unexpired term of the said Guy Alexander and who was nominated at said primary election to be voted for at the general election to be held on the 7th day of November, 1944.”

Steele sought an appeal to the Circuit Court of Marshall County, and on August 1, 1944, his appeal was docketed, and, by consent of the parties, heard on that day. The Circuit Court affirmed the order, aforesaid, entered by the County Court. On August 9, 1944, we granted a writ of error to the action of the Circuit Court, and the whole matter now comes on for hearing on a motion to reverse the ruling of the Circuit Court aforesaid.

The facts stated herein make it clear that this case is controlled by our decision in the case of *Thomas*v. *Board of Ballot Commissioners,*127 W. Va. 18, 31 S. E. 2d 328, in which an opinion was filed September 6, 1944. In that case several primary candidates were involved, and more than one magisterial district. Here only two candidates and one district need be considered. On the question which must be considered in the case at bar, we held, in the *Thomas*case, as follows:

> “Under Section 22-a, Article 4, Chapter 42, Acts of the Legislature of 1941, and Chapter 48, Acts of 1943, considered together, a magisterial district of a county school district having a member of the Board of Education of such district whose term of office extends beyond the beginning of those to be filled at the succeeding election, may nominate in a non-partisan primary election, to be voted on *176in the general election to follow, two persons for the one term to which, under the law, such magisterial district is entitled to compete, and, upon receiving the necessary vote in the general election, to elect to such term.”

■Counsel for contestant, Montgomery, apparently concede that if our decision in the *Thomas*case is followed, the ruling of the Circuit Court herein must be reversed. In effect, they ask us to overrule our decision in the *Thomas*case. In that case, the members of this Court were divided in their views, but all gave mature and careful consideration thereto, and the same was considered binding- on this Court, when, subsequently, T. E. N. Steele, the contestee in the case at bar, instituted a mandamus proceeding against the Board of Ballot Commissioners of Marshall County, in which he sought to have his name placed on the ballot, to be voted for members of the Board of Education of Marshall County, in the November election, and in that mandamus proceeding, under the authority of the *Thomas*case, we granted the relief prayed for, by an order entered by this Court on the 15th day of August, 1944. The question considered in the mandamus proceeding is identical with the sole question presented on this writ of error; and while the decisions in the *Thomas*case and in the mandamus proceeding are not, technically, the law of this case, we consider them binding precedents and see no reason, in all the circumstances, why the decisions reached in those cases should be overruled, and we therefore elect to follow rather than depart therefrom.

The order of the Circuit Court of Marshall County entered on the 1st day of August, 1944, is reversed, and an order will be entered here dismissing the contest proceeding instituted by Arthur °J. Montgomery, aforesaid, and awarding costs against him in the County and Circuit Courts and in this Court.

*Order reversed; contest dismissed.*